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CALIFORNIA COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING Basic Course Workbook Series Student Materials Learning Domain 16 Search and Seizure Version 4.8 THE MISSION OF THE CALIFORNIA COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING IS TO CONTINUALLY ENHANCE THE PROFESSIONALISM OF CALIFORNIA LAW ENFORCEMENT IN SERVING ITS COMMUNITIES

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  • CALIFORNIA COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING

    Basic Course Workbook Series Student Materials Learning Domain 16 Search and Seizure Version 4.8

    THE MISSION OF THE CALIFORNIA COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING IS TO CONTINUALLY

    ENHANCE THE PROFESSIONALISM OF CALIFORNIA LAW ENFORCEMENT IN SERVING ITS COMMUNITIES

  • Basic Course Workbook Series Student Materials

    Learning Domain 16 Search and Seizure

    Version 4.8

    © Copyright 2006 California Commission on Peace Officer Standards and Training (POST)

    All rights reserved.

    Published 1998 Revised June 2001

    Revised January 2006 Revised July 2008

    Correction June 2017 This publication may not be reproduced, in whole or in part, in any form or by any means electronic or mechanical or by any information storage and retrieval system now known or hereafter invented, without prior written permission of the California Commission on Peace Officer Standards and Training, with the following exception:

    California law enforcement or dispatch agencies in the POST program, POST-certified training presenters, and presenters and students of the California basic course instructional system are allowed to copy this publication for non-commercial use.

    All other individuals, private businesses and corporations, public and private agencies and colleges, professional associations, and non-POST law enforcement agencies in-state or out-of-state may purchase copies of this publication, at cost, from POST as listed below:

    From POST’s Web Site: www.post.ca.gov

    Go to Ordering Student Workbooks

  • POST COMMISSIONERS

    Joyce Dudley – Chair District Attorney Santa Barbara County

    Rick Braziel – Vice Chair Educator Humboldt State University

    Lai Lai Bui Sergeant Sacramento Police Department

    Thomas Chaplin

    Chief Walnut Creek Police Department

    Richard DeLaRosa Mayor City of Colton

    Barry Donelan Sergeant Oakland Police Department

    Robert Doyle Sheriff Marin County

    Laren Leichliter

    Deputy Sheriff San Bernardino County

    Geoff Long

    Public Member John McMahon Sheriff

    San Bernardino County

    Jethroe Moore, II Public Member

    James O’Rourke

    Officer California Highway Patrol

    Batine Ramirez Sergeant Placer County Sheriff’s Department

    Laurie Smith Sheriff Santa Clara County

    Walter Vasquez

    Chief La Mesa Police Department

    Stephen Lindley Representing Kamala Harris Attorney General Ex-Officio Member

    Interim Director of Division of Law Enforcement

  • THE ACADEMY TRAINING MISSION

    The primary mission of basic training is to prepare students mentally, morally, and physically to advance into a field training program, assume the responsibilities, and execute the duties of a peace officer in society.

  • FOREWORD

    The California Commission on Peace Officer Standards and Training sincerely appreciates the efforts of the many curriculum consultants, academy instructors, directors and coordinators who contributed to the development of this workbook. We must also thank the California law enforcement agency executives who allowed their personnel to participate in the development of these training materials. This student workbook is part of the POST Basic Course Training System. The workbook component of this system provides a self-study document for every learning domain in the Basic Course. Each workbook is intended to be a supplement to, not a substitute for, classroom instruction. The objective of the system is to improve academy student learning and information retention and ultimately contribute to you becoming a peace officer committed to safety, and to the communities you will serve. The content of each workbook is organized into sequenced learning modules to meet requirements as prescribed both by California law and the POST Training and Testing Specifications for the Basic Course. It is our hope that the collective wisdom and experience of all who contributed to this workbook will help you, the student, to successfully complete the Basic Course and to enjoy a safe and rewarding career as a peace officer. MANUEL ALVAREZ, Jr. Executive Director

  • LD 16: Search and Seizure i

    LD 16: Search and Seizure

    Table of Contents

    Topic See Page

    Preface

    Introduction How to Use the Workbook

    v v vi

    Chapter 1: Basic Principles of Search and Seizure Law

    Overview Fourth Amendment Protections Reasonable Expectation of Privacy Probable Cause to Search Chapter Synopsis Workbook Learning Activities

    1-1 1-1 1-3 1-6 1-12 1-14 1-16

    Chapter 2: Warrant Searches and Seizures

    Overview Introduction to Warrant Searches Probable Cause to Search Execution of a Search Warrant Chapter Synopsis Workbook Learning Activities

    2-1 2-1 2-3 2-6 2-11 2-23 2-25

    Continued on next page

  • Table of Contents, Continued

    ii LD 16: Search and Seizure

    Topic See Page

    Chapter 3: Warrantless Searches and Seizures

    Overview Plain View Searches Warrantless Searches in General Cursory/Frisk/Pat Searches Consent Searches Exigent Circumstance Searches Searches Incident to Arrest Probation/Parole Searches Chapter Synopsis Workbook Learning Activities

    3-1 3-1 3-3 3-9 3-11 3-17 3-25 3-31 3-35 3-40 3-42

    Chapter 4: Searches and Seizures Involving Motor Vehicles

    Overview Probable Cause Searches of Vehicles Plain View Seizures from Vehicles Protective Searches of Vehicles Consent Searches of Vehicles Searches of Vehicles Incident to Custodial Arrests Searches of Vehicles as Instrumentalities Vehicle Inventories Chapter Synopsis Workbook Learning Activities

    4-1 4-1 4-3 4-8 4-10 4-13 4-15 4-18 4-20 4-24 4-26

    Continued on next page

  • Table of Contents, Continued

    LD 16: Search and Seizure iii

    Topic See Page

    Chapter 5: Searches and Seizures Involving Bodily Intrusions

    Overview Warrant Requirement for Bodily Intrusion Searches and Seizures Warrantless Bodily Intrusion Searches and Seizures Use of Force During Bodily Intrusion Searches and Seizures Specific Circumstances Chapter Synopsis Workbook Learning Activities

    5-1 5-1 5-3 5-7 5-11 5-14 5-16 5-18

    Chapter 6: Identification Procedures

    Overview Introduction to Identification Procedures Field Showups Photographic Spreads Custodial Lineups Chapter Synopsis Workbook Learning Activities

    6-1 6-1 6-3 6-6 6-9 6-12 6-15 6-16

    Glossary G-1

    Continued on next page

  • Table of Contents, Continued

    iv LD 16: Search and Seizure

    This page was intentionally left blank.

  • LD 16: Search and Seizure v

    Preface

    Introduction

    Student workbooks

    The student workbooks are part of the POST Basic Course Instructional System. This system is designed to provide students with a self-study document to be used in preparation for classroom training.

    Basic Course training requirement

    Completion of the Regular Basic Course is required, prior to exercising peace officer powers, as recognized in the California Penal Code and where the POST-required standard is the POST Regular Basic Course.

    Student workbook elements

    The following elements are included in each workbook: chapter contents, including a synopsis of key points, supplementary material, and a glossary of terms used in this workbook.

  • vi LD 16: Search and Seizure

    How to Use the Student Workbook

    Introduction This workbook provides an introduction to the training requirements for this

    Learning Domain. You may use the workbook in several ways: for initial learning, for test preparation, and for remedial training.

    Workbook format

    To use the workbook most effectively, follow the steps listed below.

    Step Action

    1 Begin by reading the: Preface and How to Use the Workbook, which provide an overview of how the workbook fits into the POST training program and how it should be used.

    2 Refer to the Chapter Synopsis section at the end of each chapter to review the key points that support the chapter objectives.

    3 Begin reading the text.

    4 Complete the workbook learning activities at the end of each chapter. These activities reinforce the material taught in the chapter.

    5 Refer to the Glossary section for a definition of important terms. The terms appear throughout the text and are bolded and underlined (e.g., term).

  • LD 16: Chapter 1 - Basic Principles of Search and Seizure Law 1-1

    Chapter 1

    Basic Principles of Search and Seizure Law

    Overview

    Learning need Peace officers must have a clear understanding of their authority,

    responsibility, and potential for liability in the areas of search and seizure law, as well as the protections provided by constitutional law, statutory law, and case law against unreasonable search and seizures.

    Learning objectives

    The chart below identifies the student learning objectives for this chapter.

    After completing the study of this chapter, the student will be able to:

    Objective ID

    recognize constitutional protections guaranteed by the Fourth Amendment

    16.01.2

    identify the concept of reasonable expectation of privacy 16.01.3

    recognize standing and how it applies to an expectation of privacy

    16.01.4

    recognize probable cause to search and its link between Fourth Amendment protections and search and seizure law

    16.01.5

    recognize how the exclusionary rule applies to a peace officer’s collection of evidence

    16.01.6

    Continued on next page

  • Overview, Continued

    1-2 LD 16: Chapter 1 - Basic Principles of Search and Seizure Law

    In this chapter This section focuses on the principles upon which law enforcement search and

    seizure practices are based. Refer to the chart below for a specific topic.

    Topic See Page

    Fourth Amendment Protections 1-3

    Reasonable Expectation of Privacy 1-6

    Probable Cause to Search 1-12

    Chapter Synopsis 1-14

    Workbook Learning Activities 1-16

  • LD 16: Chapter 1 - Basic Principles of Search and Seizure Law 1-3

    Fourth Amendment Protections

    Introduction The Fourth Amendment to the Constitution prohibits unreasonable searches

    and seizures by the state and establishes that any search or seizure by the state must be based on probable cause.

    Policing in the community

    The community expects their peace officers to abide by a set of rules and work within the limitations and restrictions placed on them to ensure a free and democratic society. Doing so fosters trust. Trust is the critical link in the community/law enforcement partnership.

    Constitutional protections

    A priority of the authors of the United States Constitution and the California Constitution was to avoid unlimited actions and intrusions by the government and to protect a person’s: privacy liberty possession of property

    Fourth Amendment

    The Fourth Amendment to the United States Constitution (Article 4 of the Bill of Rights) states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

    Continued on next page

  • Fourth Amendment Protections, Continued

    1-4 LD 16: Chapter 1 - Basic Principles of Search and Seizure Law

    Article 1, Section 13

    Article 1, Section 13, of the California Constitution states: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches, shall not be violated, and a warrant may not be issued except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.

    Unreasonable searches

    The Fourth Amendment does not give individuals an absolute right to privacy; neither does it prohibit all searches. It limits only those searches conducted by the government that are considered unreasonable by the courts. To determine what is reasonable, the courts must look at the totality of circumstances and balance the individual’s right to privacy against the government’s need to gather evidence and apprehend criminals.

    Limitation on government’s power

    The Fourth Amendment, like the other Amendments in the Bill of Rights, limits the power of the government but does not apply to actions by private individuals. If a private individual violates someone else’s expectation of privacy, the victim may be able to make a claim in the civil court system.

    Continued on next page

  • Fourth Amendment Protections, Continued

    LD 16: Chapter 1 - Basic Principles of Search and Seizure Law 1-5

    Related terms

    To better understand the Fourth Amendment, peace officers need to understand the following terms. A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed upon by the government. A seizure of property occurs when there is some meaningful interference with an individual’s possessory interest in that property by the government. A seizure of a person occurs when:

    - a peace officer physically applies force - a person voluntarily submits to a peace officer’s authority

  • 1-6 LD 16: Chapter 1 - Basic Principles of Search and Seizure Law

    Reasonable Expectation of Privacy

    Introduction The Fourth Amendment is not violated unless a person’s legitimate

    expectation of privacy is infringed upon by the government.

    Expectation of privacy

    A reasonable expectation of privacy can exist almost anytime and anyplace as long as: individuals have indicated that they personally (subjectively) expect

    privacy in the object or area their expectation is one which society is prepared to recognize as

    legitimate

    Related terms

    To better understand the expectation of privacy, peace officers need to understand the following terms. Subjective expectation of privacy is a person’s state of mind demonstrated by affirmative action designed to protect their privacy (e.g., building a fence, closing window shades, locking a compartment, etc.). Objective reasonableness refers to whether society is prepared to recognize the individual’s expectation as reasonable. Curtilage means the relatively small and usually well-defined area immediately around a residence to which the occupant has a reasonable expectation of privacy.

    Continued on next page

  • Reasonable Expectation of Privacy, Continued

    LD 16: Chapter 1 - Basic Principles of Search and Seizure Law 1-7

    Expectation of privacy beyond a home or person

    Everyone can reasonably expect privacy in his or her own person and home. A peace officer must also consider the expectation of privacy in areas beyond, but close to, the home. The following table illustrates a number of situations and how the expectation of privacy can vary depending on the totality of the circumstances.

    Area If… Then… Expectation

    of Privacy

    A backyard

    a fence with a closed gate surrounds the backyard of a residence.

    common sense and custom would suggest that the general public is not expected to enter.

    Higher

    the occupants of the residence post signs directing the general public to come into the backyard for a yard sale.

    the occupants expect the general public to enter the backyard freely.

    Lower

    A front yard

    tall shrubbery is planted in front of the house, limiting the view and access by the general public.

    it can be assumed that the occupants expect this area to be blocked off from the general public.

    Higher

    there are no physical barriers preventing members of the public from freely approaching a residence through the front yard.

    this area is open to the public having business with the occupants.

    Lower

    Continued on next page

  • Reasonable Expectation of Privacy, Continued

    1-8 LD 16: Chapter 1 - Basic Principles of Search and Seizure Law

    Expectation of privacy beyond a home or person (continued)

    Area If… Then… Expectation of Privacy

    A driveway

    there are closed gates at the entrance of a driveway.

    the occupants wish to block access to the driveway by the general public.

    Higher

    the general public must use the driveway to gain access to the walkway that leads to the front door from the public street.

    it can be assumed the driveway is part of the open access to the front door.

    Lower

    Windows

    the window shades or curtains of a room are drawn.

    the occupants wish to block any view of the area from the general public.

    Higher

    the window shades or curtains are open or are constructed of material which is easily seen through.

    the occupants do not care if the general public can see into the area from the outside.

    Lower

    Continued on next page

  • Reasonable Expectation of Privacy, Continued

    LD 16: Chapter 1 - Basic Principles of Search and Seizure Law 1-9

    Expectation of privacy beyond a home or person (continued)

    Area If… Then… Expectation of Privacy

    Walls

    a solid wall is so tall that the general public cannot see over it.

    the occupants wish to block access and view to the area beyond the wall.

    Higher

    a wall is only three feet tall.

    the occupants are not trying to prevent the general public from viewing what is beyond the wall.

    Lower

    Fences

    a fence is constructed so that it cannot be seen through without getting very close and peeking.

    the occupants wish to block the view into the area beyond the fence.

    Higher

    a fence is constructed of wire.

    the occupants wish to block access but not the view into the area beyond the fence.

    Lower

    Garbage

    a garbage can is stored next to a side door to their house.

    the owner considers it within the curtilage of the residence.

    Higher

    a homeowner’s garbage is bagged and placed at curbside.

    the trash is outside the curtilage of the residence within access to the general public.

    Lower

    Continued on next page

  • Reasonable Expectation of Privacy, Continued

    1-10 LD 16: Chapter 1 - Basic Principles of Search and Seizure Law

    Open fields

    Open fields means outdoor real property, outside the curtilage of the residence. Open fields are areas which are so open to public view that the owner or possessor is deemed to have implicitly invited the general public to view the area. Because of the lack of a reasonable expectation of privacy in open fields, the protections of the Fourth Amendment do not apply. NOTE: Open fields do not have to be either open or real fields to qualify.

    Overflights An overflight is the flight of a plane or helicopter over a given area.

    Because of the lack of a reasonable expectation of privacy in an area that can be viewed from an overflight, the protections of the Fourth Amendment do not apply, as long as the aircraft is: at an altitude permitted by FAA regulations being operated in a “physically nonintrusive manner”

    Standing Standing exists only if a subject has a reasonable expectation of privacy in the

    place or thing that is searched or seized. To challenge a particular search or seizure, a person must have a reasonable expectation of privacy in the place or thing that was searched or seized. Only a person with standing can challenge the search or seizure of property, based on Fourth Amendment protections. Standing generally is established by: ownership lawful possession authority control of the area searched or the property seized

    Continued on next page

  • Reasonable Expectation of Privacy, Continued

    LD 16: Chapter 1 - Basic Principles of Search and Seizure Law 1-11

    Examples A live-in housekeeper gives consent for peace officers to enter and search for

    illegal weapons in the residence where she works. The homeowner has given the housekeeper authority over the residence; therefore, the housekeeper has standing to challenge the legality of the consent search later in court.

    A male defendant contests the search of his tool box that he had locked and placed in a friend’s garage. By locking the tool box, the owner demonstrated an expected level of privacy over its contents. Only the owner of the tool box, not the friend who owned the garage, would have standing to challenge the legality of the search of the tool box.

  • 1-12 LD 16: Chapter 1 - Basic Principles of Search and Seizure Law

    Probable Cause to Search

    Introduction The Fourth Amendment states:

    The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause…

    Definition Probable cause to search an area or object means having enough facts or

    information to provide a fair probability, or a substantial chance, that the item sought is located in the place to be searched. Thus, probable cause requires something less than an absolute or even a near certainty, but something more than a mere hunch or suspicion.

    Probable cause to search

    Peace officers must demonstrate that probable cause exists to search a specific place for specific property or contraband which will be used as evidence. Even though the court will consider the totality of the circumstances, to meet the Fourth Amendment requirement, officers must have specific facts which can be articulated in court or in a sworn statement (affidavit). To establish probable cause to search, peace officers must be able to articulate how and why they have a fair probability to believe: a crime has occurred or is about to occur evidence pertaining to the crime exists the evidence is at the location they wish to search

    Officer training and experience

    A peace officer’s training and experience is relevant in establishing probable cause. Facts must be seen and weighed as understood by a reasonable officer with that particular officer’s training and experience.

    Continued on next page

  • Probable Cause to Search, Continued

    LD 16: Chapter 1 - Basic Principles of Search and Seizure Law 1-13

    The exclusionary rule

    If a court finds a search or seizure is not reasonable and a person’s Fourth Amendment rights have been violated by the government, all items seized during the search could be ruled inadmissible or excluded as evidence at trial. NOTE: This inadmissible or excluded evidence is often referred to as

    “The fruit of the poisonous tree.” NOTE: The exclusionary rule does not appear anywhere in the

    Constitution, but rather was created by the United States Supreme Court to encourage proper law enforcement conduct. Usually, the evidence is excluded as a penalty for the illegality of the search or seizure.

  • 1-14 LD 16: Chapter 1 - Basic Principles of Search and Seizure Law

    Chapter Synopsis

    Learning need Peace officers must have a clear understanding of their authority,

    responsibility, and potential for liability in the area of search and seizure law, as well as the protections provided by constitutional law, statutory law, and case law against unreasonable search and seizures.

    Fourth Amendment protections [16.01.2]

    The Fourth Amendment provides for: the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and no warrants shall issue, but upon probable cause supported by oath or affirmation particularly describing the place to be searched and the persons or things

    to be seized

    Reasonable expectation of privacy [16.01.3]

    A reasonable expectation of privacy exists as long as: individuals have indicated that they personally (subjectively) expect

    privacy in the object or area their expectation is one which society is prepared to recognize as

    legitimate

    Standing [16.01.4]

    Standing exists only if a subject has a reasonable expectation of privacy in the place or thing that is searched or seized. Standing generally is established by ownership, lawful possession, authority, and/or control of the area searched or the property seized.

    Continued on next page

  • Chapter Synopsis, Continued

    LD 16: Chapter 1 - Basic Principles of Search and Seizure Law 1-15

    Probable cause to search [16.01.5]

    Probable cause to search for an object or area means having enough facts or information to provide a fair probability, or a substantial chance, that the object sought is located in the place to be searched.

    Exclusionary rule [16.01.6]

    If a court finds that a search is not reasonable and that a person’s Fourth Amendment rights have been violated by the government, all items seized during the search could be ruled inadmissible or excluded as evidence at trial.

  • 1-16 LD 16: Chapter 1 - Basic Principles of Search and Seizure Law

    Workbook Learning Activities

    Introduction To help you review and apply the material covered in this chapter, a selection

    of learning activities has been included. No answers are provided. However, by referring to the appropriate text, you should be able to prepare a response.

    Activity questions

    1. Describe two different backyards where the occupants of the first have a reasonable expectation of privacy while the owners of the second do not (or at least do not to the same extent). Explain why there is not a reasonable expectation of privacy in the second backyard. If both yards are in the flight path of a small local airport, which, if either, has a reasonable expectation of privacy from overflight observations? Explain.

    2. What is the exclusionary rule? How does it work to help peace officers

    honor the Fourth Amendment rights of potential suspects?

    Continued on next page

  • Workbook Learning Activities, Continued

    LD 16: Chapter 1 - Basic Principles of Search and Seizure Law 1-17

    Activity questions (continued)

    3. Several handguns have been stolen from the home of a gun collector. A person, who has been reliable in the past, tells officers that a local gang is involved in the theft. Peace officers know that one of the gang members lives within five blocks of the house where the theft occurred. Do officers have probable cause to search the house? Why or why not?

    Continued on next page

  • Workbook Learning Activities, Continued

    1-18 LD 16: Chapter 1 - Basic Principles of Search and Seizure Law

    Student notes

  • LD 16: Chapter 2 – Warrant Searches and Seizures 2-1

    Chapter 2

    Warrant Searches and Seizures

    Overview

    Learning need To search for and seize evidence legally, peace officers must know the rules

    and requirements for obtaining and executing a search warrant.

    Learning objectives

    The chart below identifies the student learning objectives for this chapter.

    After completing the study of this chapter, the student will be able to:

    Objective ID

    recognize how probable cause serves as a basis for obtaining a search warrant

    16.02.2

    recognize the necessary conditions for securing an area pending issuance of a search warrant

    16.02.7

    identify the time limitations for serving a search warrant 16.02.8

    recognize the elements for compliance with the knock and notice requirements when serving a search warrant

    16.02.9

    recognize the application of the Nexus Rule while conducting an authorized search

    16.02.10

    Continued on next page

  • Overview, Continued

    2-2 LD 16: Chapter 2 – Warrant Searches and Seizures

    In this chapter This section focuses on obtaining and executing a search warrant. Refer to the

    following chart for specific topics.

    Topic See Page

    Introduction to Warrant Searches 2-3

    Probable Cause to Search 2-6

    Execution of a Search Warrant 2-11

    Chapter Synopsis 2-23

    Workbook Learning Activities 2-25

  • Introduction to Warrant Searches

    LD 16: Chapter 2 – Warrant Searches and Seizures 2-3

    Introduction Unless justified by an exception (consent, incident to arrest, search condition,

    or emergency), a search of private property may lawfully be conducted only if authorized by a search warrant.

    Ethics Peace officers must stay within the limits of the law in order to enforce and

    preserve it. Peace officers are part of the law, never above it. The end never justifies the means.

    Warrant clause of the Fourth Amendment

    Search and seizure law originates from the Fourth Amendment of the United States Constitution and Article 1 of the California Constitution. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

    Definition A search warrant is:

    an order in writing, in the name of the people signed by a magistrate directed to a peace officer commanding the officer to search for an individual or individuals, a thing

    or things, or personal property in the case of a thing or things or personal property, to bring the same

    before the magistrate (Penal Code Section 1523)

    Continued on next page

  • Introduction to Warrant Searches, Continued

    2-4 LD 16: Chapter 2 – Warrant Searches and Seizures

    Benefits of obtaining a search warrant

    As a general rule, the courts have found searches and seizures to be reasonable and therefore lawful when authorized by a valid warrant. The burden is on the defendant to prove the illegality of any search executed with a search warrant.

    Statutory grounds for a search warrant

    Penal Code Section 1524 presents the statutory grounds for issuance of a search warrant.

    When the property or thing... Penal Code Section

    was stolen or embezzled. 1524(a)(1)

    was used as the means of committing a felony. 1524(a)(2)

    is in the possession of any person with the intent to use it as a means of committing a public offense, or in the possession of another to whom the item may have been delivered for the purpose of concealing it or preventing its being discovered.

    1524(a)(3)

    constitutes evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony.

    1524(a)(4)

    consists of evidence that tends to show that sexual exploitation of a child (Penal Code 311.1), or the possession of matter depicting sexual conduct of a person under the age of 18 years (Penal Code 311.11), has occurred or is occurring.

    1524(a)(5)

    Continued on next page

  • Introduction to Warrant Searches, Continued

    LD 16: Chapter 2 – Warrant Searches and Seizures 2-5

    Statutory grounds for a search warrant (continued)

    Penal Code Section 1524 presents the statutory grounds for issuance of a search warrant.

    When the property or thing... Penal Code Section

    when there is a warrant to arrest a person. 1524(a)(6)

    is a sample of blood that constitutes evidence that tends to show a violation of Section 23140, 23152, or 23153 of the Vehicle Code and the person from whom the sample is being sought has refused an officer’s request to submit to, or has failed to complete, a blood test as required by Section 23612 of the Vehicle Code, and the sample will be drawn from the person in a reasonable, medically approved manner.

    1524(a)(13)

    are controlled substances or a device, contrivance, instrument, or paraphernalia used for unlawfully using or administering a controlled substance pursuant to the authority described in Section 11472 of the Health and Safety Code.

    1524(a)(15)

    ` NOTE: Use Penal Code Section 1524(a)(4) to seize evidence such as

    rent receipts to show possession or control of the premises or computers.

    NOTE: Penal Code Section 311.2 presents additional authority to obtain

    a search warrant to seize child pornography.

    Continued on next page

  • Introduction to Warrant Searches, Continued

    2-6 LD 16: Chapter 2 – Warrant Searches and Seizures

    Content of a search warrant

    As stated in Penal Code Sections 1529 and 1533, the following information must appear in the search warrant: The names of all those who have sworn that the facts presented as

    probable cause are true The statutory grounds for issuing the warrant Descriptions of the places and/or persons to be searched Descriptions of the things or property to be seized The magistrate’s signature The date issued An indication by magistrate if nighttime service is authorized

  • Probable Cause to Search

    LD 16: Chapter 2 – Warrant Searches and Seizures 2-7

    Introduction Before they can obtain a search warrant, peace officers must be able to provide a judge with specific facts that meet the Fourth Amendment’s requirement of probable cause.

    Constitutional requirement of probable cause

    The Fourth Amendment of the U.S. Constitution clearly states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

    Probable cause to search

    In the search warrant context, probable cause to search means enough credible information to provide a fair probability that the object or person the peace officers seek will be found at the place they want to search.

    Officer training and experience

    It is possible for an activity which might otherwise appear innocent to the general public to amount to probable cause to a peace officer. A peace officer’s training and experience may enter the equation for determining probable cause. Facts must be seen and weighed as understood by a reasonable officer.

    Collective knowledge

    Probable cause may be based on the collective knowledge of all the officers involved in an investigation, and all the inferences which may reasonably be drawn from this information, with that particular officer’s training and experience.

    Continued on next page

  • Probable Cause to Search, Continued

    2-8 LD 16: Chapter 2 – Warrant Searches and Seizures

    Probable cause to search vs. probable cause to arrest

    Probable cause to search differs in content, but not in degree of certainty, from probable cause to arrest.

    Search Warrants Arrest Warrants

    Peace officers must articulate probable cause that: a crime has been committed, and evidence concerning the crime or

    the identity of the perpetrator is located at the place to be searched.

    Peace officers must articulate probable cause that: a crime has been committed, and the individual to be arrested

    committed that crime.

    Elements of probable cause to search

    To establish probable cause, peace officers must directly or circumstantially show that certain required elements exist. The following table identifies the three required elements of probable cause to search.

    To establish probable cause to search, there must be a fair probability that...

    Rationale Examples

    a crime occurred. There must be at least a fair probability that a crime has occurred or, in some cases, will occur.

    Person sold drugs to an undercover officer.

    A person purchased a large amount of chemicals that could be used for a clandestine lab.

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    Elements of probable cause to search (continued)

    To establish probable cause to search, there must be a fair probability that...

    Rationale Examples

    evidence pertaining to the crime exists, and

    Officers must establish that evidence of a crime exists. This can be accomplished by direct evidence, circumstantial evidence, or by reasonable inference.

    Information from a victim that a gun was displayed during a robbery.

    Stolen property. Existence of items

    commonly used to commit or facilitate a crime (e.g., drug paraphernalia).

    the evidence is located at the place to be searched.

    Officers must establish that the evidence was taken to, or produced at, the place to be searched. This can be accomplished by direct evidence, circumstantial evidence, or by reasonable inference.

    A reliable source saw the evidence at the location.

    The person goes directly to a location after a crime has been committed.

    The location is one where a criminal might likely hide incriminating evidence.

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    Related terms

    To better understand probable cause as it relates to searches and seizures, peace officers need to understand the following terms. Reasonable inference is the act of drawing a conclusion from a fact; it is similar to making a presumption (e.g., seeing smoke and inferring there is a fire). Direct evidence is evidence that proves a fact directly, without an inference or presumption (e.g., the sale of a controlled substance to an undercover officer). Circumstantial evidence is evidence that proves a fact indirectly, that is, personal knowledge or observations from which deductions must be drawn by the jury or court (e.g., partial six-pack of beer found on the car seat supports inference that someone in the car has been drinking). NOTE: Whether evidence is direct or circumstantial depends on the fact

    to be proven.

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    Examples An officer found out that a man bought 400 pounds of iodine chips under an

    assumed name and took it to a remote location. Even though the man’s behavior was legal, the officer’s training and experience investigating clandestine drug labs led the officer to reason that there was a fair probability that evidence of illegal methamphetamine manufacturing would be discovered at that location.

    Neighbors complained about a run-down garage with stripped cars in back and lots of activity during normal work hours as well as unusual hours at night. Most of the reported activity did not involve pumping gas or other typical gas station activities. Officers had suspected the existence of a stolen car “chop shop” within that particular neighborhood that was tied to gang activity. Although nothing illegal had taken place at the site, this information contributed toward probable cause to obtain a search warrant.

  • 2-12 LD 16: Chapter 2 – Warrant Searches and Seizures

    Execution of a Search Warrant

    Introduction Even if sufficient probable cause has been established and a search warrant

    has been issued, evidence can still be excluded if the warrant itself is not executed within the law.

    Securing an area pending issuance of a search warrant

    Under very limited circumstances peace officers may secure a residence while in the process of obtaining a search warrant. In addition to probable cause to search, they also need exigencies, that is, a belief, based on the surrounding circumstances or information at hand, that the evidence will likely be destroyed or removed before a search warrant can be obtained. An area may be secured pending issuance of a search warrant if the

    suspect has been arrested inside the location. An area may be secured pending issuance of a search warrant if

    companions of the suspect may destroy items sought upon learning of the arrest.

    NOTE: Refusal of consent to enter, by itself, does not provide

    justification to secure the premises pending issuance of a search warrant.

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    Examples Undercover officers arranged to purchase a kilo of cocaine. The seller, after

    showing a sample and seeing the money, drove to his supplier’s residence a few miles away, obtained the cocaine, returned to the officers, made the sale, and was arrested. Other officers, who followed the seller and kept the supplier’s residence under surveillance, entered and secured the residence pending procurement of a search warrant.

    A male suspect was working with a female suspect selling drugs from the woman’s residence. A few blocks from the woman’s house, in public and in front of onlookers, police stopped the male suspect and arrested him with drugs he had admittedly obtained from his female partner. The officers had reason to believe that the female partner might learn of the arrest or become suspicious when the male suspect did not return as scheduled. The circumstances were sufficient to justify entering and securing the residence while waiting for a search warrant.

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    Detaining suspects pending issuance of a search warrant

    If the place being secured is occupied when peace officers enter, they will need probable cause to arrest if they take the suspect away or keep the suspect there for an unreasonable period while the warrant is obtained. Without probable cause to arrest an individual, peace officers are only entitled to detain the suspect temporarily while they determine the person's involvement.

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    Time limit for service

    Penal Code Section 1534 states that the search warrant shall be executed and returned within 10 days from issuance. The 10-day time limit means that peace officers have 10 days within which to execute the warrant, beginning with the day after the warrant is issued and running until midnight of the 10th day, with no exceptions for weekends or holidays. NOTE: It is a felony for a peace officer to willfully disclose the existence

    of a search warrant, prior to its execution, for the purpose of preventing the search or seizure. (Penal Code Section 168)

    Failure to make a timely execution

    If the 10-day period has expired, peace officers must either: obtain a new warrant resubmit the expired warrant so it may be reissued and revalidated

    Failure to make a timely return

    The return of the warrant means returning the warrant and a written inventory of the property taken to the magistrate (PC 1537). The rule for return of the warrant is slightly different than for execution. If the 10th day falls on a weekend or holiday, then peace officers are entitled to postpone returning the warrant until the next business day. A late return will not normally invalidate the warrant or result in suppression, particularly if it happens unintentionally, unless the defendant can show prejudice.

    Time of service

    Normally, a search warrant may be served only between the hours of 7:00 a.m. and 10:00 p.m.

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    Nighttime service

    If peace officers can show good cause, the magistrate may, at the magistrate’s discretion, insert a direction in a search warrant that it may be served at any time of day or night. The main point of the good cause requirement is to ensure that the request for nighttime service is specifically brought to the attention of the magistrate so that the magistrate will have to make a conscious decision whether such a particularly abrasive intrusion is appropriate. Examples of good cause include situations where: nighttime service will decrease danger to the peace officers a drug sale occurred at the search location at night prompt execution might preclude murders the property sought will likely be gone, sold, or removed by dawn the stolen items are primarily perishable or easily disposable goods As long as the search begins before 10:00 p.m., no nighttime authorization is necessary, even though the search may continue on well beyond that hour.

    Knock and notice rule

    Before entering a private dwelling to execute a search warrant, officers must comply with the requirements of knock and notice as set forth in Penal Code Section 1531. Knock and notice simply means that before entering a dwelling to serve a search warrant, officers must give notice to persons inside through certain actions.

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    Knock and notice procedure

    To complete the prescribed procedures for knock and notice, peace officers must: knock or otherwise announce their presence identify themselves as peace officers state their purpose demand entry wait a reasonable amount of time if necessary, forcibly enter the premises

    Wait/refusal requirement

    When executing a search warrant, there is a specific requirement that before forcing entry, peace officers must be refused admittance. Refusal may be based on: a verbal statement individual conduct the passage of a reasonable amount of time NOTE: The amount of time that is considered reasonable will depend on

    all the circumstances. Approximately one minute would be a safe period in most cases, but it can be less, especially if peace officers know that someone is inside and awake.

    Forcible entry to execute a search warrant

    If the knock and notice requirements are met, including refusal, peace officers may legally break in or force entry into premises to execute a search warrant. (Penal Code Section 1531) The purpose of the knock and notice requirements is to protect the privacy of occupants in their home and to minimize the possibility of a violent confrontation between peace officers and private individuals.

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    Inner doors

    While officers must comply with knock and notice at outer doors to a residence, there is no legal requirement to comply with knock and notice at inner doors. NOTE: While there may be no legal requirement to comply with knock

    and notice at inner doors, there may be tactical reasons why it is appropriate.

    Exceptions to knock and notice

    The law allows peace officers to enter private property unannounced if they can demonstrate that compliance with the knock and notice requirements would be futile, or that compliance could result in: harm to the officers or other individuals (e.g., hostages the destruction of evidence

    Only the officers serving the warrant can determine if the circumstances they face justify non-compliance with the knock and notice requirements of law. The issuing magistrate does not have the authority in the warrant to exempt officers from giving knock and notice and the legality of an officer’s decision to omit knock and notice would likely be reviewed by a court to determine if it met a lawful exception.

    Examples Officers went to a motel room with a warrant to search the building for illegal

    drugs. After complying with initial knock and notice requirements and while waiting for a response from the occupants, officers heard muffled voices and the sound of a toilet flushing twice. Because the officers had reason to believe that suspects were attempting to destroy evidence, they could lawfully force entry.

    Officers were sent to an apartment with a warrant to search for illegal weapons. The resident of the apartment had been arrested in the past by the same officers for armed robbery. The officers had specific reasons to believe the suspect was currently armed and would flee if given the opportunity. For reasons of officer safety and to prevent escape, the officers announced their presence but entered without waiting for a response.

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    Ruse entry

    Peace officers may use a false identity, a ruse or trick to obtain consent to enter as long as they already have a judicially-authorized right to enter, i.e., a search warrant. Example: Officers with a warrant set off firecrackers to simulate

    gunfire, then asked the occupants inside the fortress-like house to come outside to check their vehicles for damage. Once the barricades to the home were down, the officers announced their identity and authority to conduct a search.

    Presenting the search warrant

    If the occupant is present, peace officers should show the occupant the original warrant and give the occupant a copy. If no one is home, a copy of the warrant may be left in a conspicuous place. Likewise, officers must leave behind a detailed list of the property taken, whether anyone is home or not. (Penal Code Section 1535) NOTE: In California there is no statutory requirement to present a copy

    of the warrant to the occupant. Therefore, failure to do so will not result in the suppression of any evidence seized.

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    Scope and specificity of a search warrant

    During a search authorized by a search warrant, officers are limited by the information specified in the search warrant. (This is known as the scope of the search.) Search warrants must include specific: statutory grounds for issuance identification of the area(s) or person(s) that may be searched identification of the item(s) to be seized If an area is searched or an item is seized that is beyond the scope of the warrant, the evidence may be excluded later at trial.

    Detaining persons on the premises

    Peace officers may detain and frisk/pat search persons who are present and have demonstrated a connection with the premises. Examples of such a connection include a person who: is already inside the premises has a key to enter the premises freely enters the premises without knocking Someone’s mere arrival, by itself, at premises where a search is being conducted does not provide enough connection to justify a detention, let alone a cursory/frisk/pat search. NOTE: If searching a commercial establishment, peace officers may not

    detain everyone who is present, but rather only those persons who appear connected to the suspected criminal activity.

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    Searching containers

    When a warrant authorizes the search of a residence, vehicle, or person, it automatically authorizes the search of any thing, place, or container inside that residence or vehicle, or on that person, where the object of the search might be located. If, however, the warrant was not for a general area, but instead was for a particular container, that container would also have to be described as completely as possible in the warrant.

    Examples A search warrant authorized the search of a residence for heroin and

    indications of ownership and identification. Peace officers may search any place that might contain these items, including any closed containers.

    A search warrant authorized the search for a particular suspect in the home of his ex-wife. Peace officers may search containers within the residence only if the containers are large enough for the suspect to hide in.

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    Nexus rule

    Under the nexus rule, officers may seize items not listed in the warrant when: the items are discovered while the officers are conducting a lawful search

    for the listed evidence, and they have probable cause to believe the item is contraband, evidence of

    criminal behavior, or would otherwise aid in the apprehension or conviction of the criminal

    Nexus means a reasonable connection or link between two or more items.

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    Examples During a warrant search for narcotics, officers found a sawed-off shotgun in

    the trunk of the suspect’s car. Although the weapon was not named in the search warrant, it was seized by the officers as an illegal weapon.

    While searching a suspect’s residence on a murder case, officers seized a pair of shoes with a “waffle-like” pattern on the soles even though the shoes were not described in the search warrant. The seizure of the shoes was legal because one of the officers had personal knowledge that waffle-like shoeprints were left at the scene of the crime by the suspect.

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    Chapter Synopsis

    Learning need To search for and seize evidence legally, peace officers must know the rules

    and requirements for obtaining and executing a search warrant.

    Probable cause and search warrants [16.02.2]

    Peace officers must establish probable cause that: a crime has been committed evidence of the crime exists the evidence sought is located at the place to be searched

    Securing an area [16.02.7]

    Under very limited circumstances peace officers may secure a residence while in the process of obtaining a search warrant. In addition to probable cause to search, they also need exigencies, that is, a belief, based on the surrounding circumstances or information at hand, that the evidence will likely be destroyed or removed before a search warrant can be obtained.

    Time limitations [16.02.8]

    Penal Code Section 1534 states that the search warrant shall be executed and returned within 10 days from issuance, beginning with the day after the warrant is issued and running until midnight of the 10th day, with no exceptions for weekends or holidays. A search warrant may be served only between the hours of 7:00 a.m. and 10:00 p.m., unless designated for nighttime service by the magistrate issuing the warrant.

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    LD 16: Chapter 2 – Warrant Searches and Seizures 2-25

    Knock and notice [16.02.9]

    Before entering a private dwelling to execute a search warrant, officers must comply with the requirements of knock and notice. Peace officers must: knock or otherwise announce their presence identify themselves as peace officers state their purpose demand entry wait a reasonable amount of time if necessary, forcibly enter the premises

    Nexus rule [16.02.10]

    Nexus means a reasonable connection or link between two or more items. The nexus rule states that officers may seize items not listed in the warrant when: the items are discovered while the officers are conducting a lawful search

    for the listed evidence, and they have probable cause to believe the item is contraband, evidence of

    criminal behavior, or would otherwise aid in the apprehension or conviction of the criminal

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    Workbook Learning Activities

    Introduction To help you review and apply the material covered in this chapter, a selection

    of learning activities has been included. No answers are provided. However, by referring to the appropriate text, you should be able to prepare a response.

    Activity questions

    1. List at least four different statutory grounds for the issuance of a search warrant.

    2. Peace officers patrolling a neighborhood notice there is heavy foot traffic

    in and out of one garden apartment during the day. This continues for several consecutive days, and officers note that visitors stay only a few moments each and seem to glance around as they leave. Neighbors have called police to report that the numerous visitors continue up until about 2:00 a.m. A reliable source has indicated that the residents of the apartment are selling cocaine. Do you think officers have probable cause to seek a search warrant? Why? What is the next step the officers should take?

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    LD 16: Chapter 2 – Warrant Searches and Seizures 2-27

    Activity questions (continued)

    3. Officers are in the process of serving a search warrant to look for handguns in a suburban residence. They believe that the residents, a man, a woman, and a 5-year-old boy, are at home. What, if any, knock and notice actions should the officers take? Explain your answer. If officers give notification of their presence, and there is no response within 45 seconds, what do you think they should do? Would your answer vary if it were the middle of the night? The middle of day?

    4. Peace officers enter an apartment with a search warrant for a murder

    weapon. While conducting the authorized search, they notice a small child cowering in a corner, covered with bruises and new welts. As one officer approaches the child, she is shielded by her mother who says, “There are no weapons here.” What, if anything, should the officers do about the child? Does the nexus rule apply?

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    Workbook Corrections

    Suggested corrections to this workbook can be made by going to the POST

    website at: www.post.ca.gov

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    Student notes

  • 3-1 LD 16: Chapter 3 – Warrantless Searches and Seizures

    Chapter 3

    Warrantless Searches and Seizures

    Overview

    Learning need When certain conditions are met, officers may lawfully search and seize

    evidence without a search warrant. For evidence to be admissible at trial, officers must have a clear understanding of the legal requirements for warrantless searches.

    Learning objectives

    The chart below identifies the student learning objectives for this chapter.

    After completing the study of this chapter, the student will be able to:

    Objective ID

    recognize why a plain view seizure does not constitute a search

    16.03.1

    recognize the legal requirements for seizure of items in plain view

    16.03.2

    recognize the conditions and circumstances where warrantless searches and seizures are considered reasonable and legal

    16.03.3

    recognize the scope and necessary conditions for conducting the following types of warrantless searches: - cursory/frisk/pat search - consent searches - searches pursuant to exigent circumstances - searches incident to arrest - probation/parole searches

    16.03.4 16.03.5 16.03.6 16.03.7 16.03.8

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    In this chapter This section focuses on warrantless searches and seizures. Refer to the

    following chart for specific topics.

    Topic See Page

    Plain View Seizures 3-3

    Warrantless Searches in General 3-9

    Cursory/Frisk/Pat Search 3-11

    Consent Searches 3-17

    Exigent Circumstance Searches 3-25

    Searches Incident to Arrest 3-31

    Probation/Parole Searches 3-35

    Chapter Synopsis 3-40

    Workbook Learning Activities 3-42

  • 3-3 LD 16: Chapter 3 – Warrantless Searches and Seizures

    Plain View Seizures

    Introduction Peace officers do not have to blind themselves to what is in plain view if an

    item they see can be associated with a crime or criminal behavior, simply because they do not have a warrant.

    Leadership Peace officers are entrusted with unusual powers and are subject to the highest

    level of public scrutiny. This is an awesome responsibility. As leaders, peace officers have to maintain balance between their obligation to protect themselves and the community while protecting everyones’ individual rights.

    No Fourth Amendment protection

    In a constitutional sense, when an officer sees an item in plain view, from a place the officer has a lawful right to be, no search has taken place. The owner or possessor obviously has no reasonable expectation of privacy for items which are in plain view. Without an expectation of privacy, the owner or possessor has no Fourth Amendment protection.

    Requirements for seizure

    Peace officers must meet certain requirements before an item in plain view may be seized legally and used as evidence. Peace officers must have: probable cause a lawful right to be in the location lawful access to the item

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    Probable cause for seizure

    Even though peace officers need not appear before a magistrate, they still must have enough facts to provide probable cause, that is, a fair probability that the item in plain view is contraband or evidence of a crime. The incriminating character of the item must also be immediately apparent to the officer. NOTE: Officers may use all of their senses, not just sight, to obtain

    probable cause. The plain view doctrine, therefore, can also include items they can smell, hear, or touch from a lawful position.

    Observation from a lawful location

    Peace officers must have a lawful right to be at the location from which they initially observe the item. That is, the observation must be made from a vantage point that does not violate an individual’s reasonable expectation of privacy.

    Public access areas

    Any area the general public or some members of the public have been given either express or implied permission to be in is considered a public access area. Peace officers have the legal right to make observations from any public access area at any time.

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    Examples Stereo speakers, matching the description of a stolen item, were left on the

    back seat of a vehicle that was parked in a lot open to general pedestrian traffic. The officer’s observations were made from the public access area around the car.

    Contraband was observed in a business that was open to the public. The officer’s observations from the area were legal since the general public was free to be in the same area.

    Surveillance It is not a search for peace officers to conduct surveillance of private premises

    or to follow people who leave the premises, as long as the observations are made from a place where the officer has a right to be. Videotaping a suspect’s activities is a form of surveillance.

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    Sensory aids

    If officers are in a place where they have a lawful right to be, and if they use a device that is nonintrusive to aid or enhance their observations, their observations of items or areas in plain view are lawful, despite the enhancement. The chart below presents further information regarding sensory aids.

    Devices Guidelines

    Flashlights Night vision devices

    May be used as long as the officer is using them from a lawful observation point.

    Binoculars May be used to enhance only what can already be seen by the naked eye from a lawful observation point

    Dogs Contraband-sniffing dogs are considered nonintrusive when they are in a place they have a lawful right to be. If a specially trained dog reacts positively to an item, this normally provides the officer with probable cause to search or seize the article, although a search warrant may be required in some circumstances.

    Abandoned property

    If an item has been abandoned by the owner, the owner has relinquished any expectation of privacy over the item. The Fourth Amendment does not protect articles or an area that has been abandoned by its owner. NOTE: Trash placed in a position for pick-up outside the curtilage of the

    residence is considered abandoned.

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    Lawful access

    Simply because an officer can see an object in plain view from a lawful location does not automatically mean the officer may legally enter private property without a warrant to seize it, even if the object is obviously contraband or evidence of a crime. The officer also needs lawful access. Lawful access to private property is most commonly obtained when: the officer’s entry is based on consent the officer’s entry is based on exigent circumstances, for example, a

    reasonable belief that the evidence will be destroyed if entry is delayed in order to obtain a warrant

    the officer has lawfully entered the area for some other purpose (e.g., to

    conduct a parole or probation search, or an administrative or regulatory search, etc.)

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    Examples An officer responding to a burglary call talked to a neighbor who said two

    teenagers had just fled with a TV. While investigating, the officer found an open window on the property with a box on the ground beneath it containing a TV. The officer entered the property to see if any burglars or victims might still be inside. Once inside, the officer found a clandestine drug lab in plain view. Because the entry was lawful based on exigent circumstances, observation and seizure of the lab was also lawful.

    Two officers conducting a valid, warrantless administrative inspection of an automobile repair shop came across evidence of drugs in plain view and through plain smell. The officers had legal authority to seize the evidence because they were conducting other legal business in that location.

  • 3-9 LD 16: Chapter 3 – Warrantless Searches and Seizures

    Warrantless Searches in General

    Introduction Under the Fourth Amendment, warrantless searches of private property are

    presumptively illegal. However, case law has created some exceptions to the warrant requirement. Warrantless searches will be upheld if the peace officer’s conduct came within one of these exceptions.

    Fourth Amendment protection

    The first clause of the Fourth Amendment states people have a right to be protected from unreasonable searches and seizures by government agents. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

    Case law exceptions

    The Fourth Amendment does not give individuals an absolute right to privacy, and it does not prohibit all searches — only those that are unreasonable. The courts have identified certain specific conditions and circumstances where warrantless searches and seizures are considered reasonable and, therefore, legal. In addition to plain view seizures, these exceptions to the usual warrant requirement include: cursory/frisk/pat down consent searches searches pursuant to exigent circumstances searches incident to custodial arrest probation/parole searches

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    Establishing the basis for a warrantless search or seizure

    In deciding whether a warrantless search or seizure was legal, courts will always consider the totality of the circumstances. However, peace officers must always have specific facts to demonstrate the search or seizure fell within one of the exceptions to the warrant requirement.

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    Cursory/Frisk/Pat Searches

    Introduction Normally, non-consensual searches are not permitted during a detention.

    However, if an officer has a factual basis to suspect the person being detained poses a danger to the officer, or is carrying a concealed weapon or an object that could be used as a weapon, the officer is justified in conducting a limited search for the weapon without a warrant.

    Definition A cursory/frisk/pat search is a strictly limited search for weapons of the outer

    clothing of a person who has been lawfully detained. A cursory/frisk/pat search is a search for possible weapons only, not a search for contraband or other evidence.

    Necessary conditions

    Cursory/frisk/pat searches of detainees are allowed to prevent unexpected assault on peace officers. But a generalized, non-specific concern for officer safety is not sufficient reason to allow for the intrusion of a cursory/frisk/pat search. For a cursory/frisk/pat search to be lawful: the person must be lawfully detained for an investigative purpose the searching officers must be able to articulate specific facts which caused

    them to reasonably believe the person is dangerous or may be carrying a weapon

    Scope of the search

    The scope of a cursory/frisk/pat search is limited to outer clothing for weapons or potential weapons only. Once the officer conducting the search realizes an object is not a weapon, the officer cannot further manipulate the object; the officer must move on. Any additional feeling, grabbing, or manipulating of the item is outside the scope of a cursory/frisk search and will be considered an illegal search.

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    Absolute certainty not required

    An officer need not be absolutely certain that the person is armed or potentially dangerous. However, the officer’s suspicion must be reasonable and based on specific facts. The following table identifies factors that have been recognized as contributing to the suspicion that the person may be carrying a weapon or pose a danger.

    Factor Examples

    Clothing Bulge in clothing that is the size of a potential weapon

    Wearing a heavy coat when the weather is warm

    Actions Trying to hide something Appearing overly nervous Acting in a threatening manner

    Prior knowledge History of carrying weapons or violent behavior

    Reason for detention

    Stopped in order to investigate a serious, violent, or armed offense

    Companions Lawful search of companions revealed a weapon or potential weapon

    Location Stopped in an area known for violence, or where the officer is unlikely to receive immediate aid if attacked

    Time of day/amount of light

    Stopped during nighttime Stopped in an area with little or no lighting

    Ratio Detainees outnumber officers

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    Contraband If, during a lawful cursory/frisk/pat search for weapons, an item is discovered

    that is immediately recognized as contraband (based on plain sight, smell, or touch), the officer may seize it. If the person is placed under arrest, the officer may then conduct a full search incident to the custodial arrest. If the item is not immediately recognized as contraband, the officer may not manipulate the suspected area or object further in order to establish its nature, unless the officer is still concerned it may be a weapon or potential weapon.

    Containers If the officer comes across a container on the person during a cursory/frisk/pat

    search, the officer is entitled to seize it and open it only if it is reasonable to believe it can be used as a weapon or that it might contain a weapon. Detention alone does not give officers the right to search (open) the container, unless their knowledge and experience provide probable cause to believe that it contains contraband (i.e., they could easily feel that the object was small and resilient like a heroin-filled balloon), since with probable cause they could make an arrest. (In general, common containers like cigarette packs and film containers are not searchable.)

    Reaching inside

    During a cursory/frisk/pat search, an officer may reach inside a subject’s clothing or pockets to inspect an object further only if: the object reasonably felt like a weapon or something that could be used as

    a weapon the subject’s clothing is so rigid or heavy that the officer could not rule out

    the possibility of a weapon or potential weapon

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    Reaching inside (continued)

    NOTE: In addition to what officers may lawfully do as part of a cursory/frisk/pat search for weapons, they may also always seek voluntary consent to search. Such consent to search can be for any part of a suspect’s clothing or belongings, and for any objects (such as drugs) the officer asks about.

    Discovery If an officer discovers an object during a cursory/frisk/pat search which the

    officer believes is a weapon or a dangerous instrument which could be used as a weapon, the officer has a right to seize it from the person. The officer may hold the weapon or potential weapon until the detention is concluded. If there is no probable cause to make an arrest, then the item must be returned to the subject. NOTE: A cursory/frisk/pat search does not end when an officer finds a

    single weapon or potential weapon. Officers must be aware subjects may be carrying more than one item at a time that could pose a potential danger.

    Transporting a passenger

    Peace officers may conduct a cursory/frisk/pat search of any person the officers have a duty or are obligated to transport before permitting the person to ride in a law enforcement vehicle. If officers are not obligated to transport the person, a cursory/frisk/pat search is permitted only if the officer informs passengers that: they have the right to refuse the ride if they accept the ride, they must first consent to a cursory/frisk/pat search

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    Examples An officer was in a hotel room questioning a female companion of a man who

    had been arrested for armed robbery earlier that day. In the course of the questioning, the woman grabbed her make-up bag from a nearby dresser. Because it was reasonable to suspect that the woman might be reaching for a weapon, the officer seized the bag. When the officer realized the bag was heavy and large enough to potentially contain a weapon, he opened the bag to search it.

    An officer, responding to a complaint regarding a panhandler, noticed a large bulge in the front waistband of the man’s trousers. Because of the size and location of the bulge, the officer believed the item could be a weapon and conducted a cursory/frisk/pat search of the man. When the item turned out to be a rolled up piece of clothing, the officer continued the frisk and found no other indications that the man was a potential danger.

    While on routine patrol one morning, two officers spotted a young man looking into parked cars in an alley where there had been earlier complaints of vehicle tampering. As the officers drove by slowly, the man tried to hide behind a dumpster. When the officers approached him, the man became nervous, boisterous, and antagonistic. Because the young man’s actions and behavior gave the officers reason to believe that he might pose a danger, they could lawfully frisk/pat search him for weapons or potential weapons.

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    Consent Searches

    Introduction Generally, the Fourth Amendment prohibits warrantless searches. However,

    peace officers may enter premises and/or conduct searches without a warrant if they have obtained valid consent.

    Warrant searches vs. consent searches

    If officers have probable cause to search but lack an exigent circumstance to justify a warrantless entry, they should always seek a warrant instead of seeking consent. Without a warrant: the occupant of the property has the right to refuse entry and therefore

    refuse the search even if they enter with consent, officers may not detain persons who are on

    the premises unless they have reasonable suspicion of criminal activity Seeking consent rather than obtaining a warrant can also serve to warn subjects of pending law enforcement action. The evidence may be destroyed or removed during the time that the warrant is obtained. Peace officers are not allowed to secure or freeze the premises in situations where they have created the exigency by their actions.

    Necessary conditions

    For consent to be valid, the consent must be: voluntary, and obtained from a person with apparent authority or to give that consent NOTE: If the consent is valid, the consenter has temporarily

    relinquished any expectation of privacy for the area or item to be searched.

    NOTE: An unlawful detention invalidates a consent search.

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    Scope of a consent search

    Peace officers may search those places and things they reasonably believe the consenting person authorized them to search. As long as the search remains within the scope given, officers may seize any crime-related evidence which they discover. If the consenting person expressly or implicitly restricts the search to certain places or things, officers must honor those restrictions. If the officers tell the consenting person what type of evidence they are searching for, the scope of the search must be limited to those places and things in which such evidence may reasonably be found. Example: Consent to search inside a suitcase includes consent to look

    inside all the compartments of the suitcase. Example: Consent to search the living room includes consent to look

    into small containers sitting on shelves and on tables within the room but not to enter any other rooms of the residence.

    Example: Consent to search for documents within an office includes

    consent to look into file drawers as well as through a desk.

    Voluntary consent

    Voluntary consent means an act of free will and not the result of duress or coercion. If consent is merely a submission to an assertion of authority or coercion, the consent is not voluntary. Any search under such conditions would be unlawful, and any item(s) seized would not be admitted as evidence at trial.

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    LD 16: Chapter 3 – Warrantless Searches and Seizures 3-18

    Peace officer conduct

    Peace officers may inadvertently undermine the voluntariness of consent by their conduct. Officers who seek consent must make it clear that they are requesting permission to search -- not demanding it. The table below offers examples of peace officer actions and their possible influence on the voluntariness of consent.

    Action Consent may be considered involuntary if peace

    officers...

    Show of physical force exhibit force while seeking consent (e.g., rest their hands on, or draw weapons).

    Misrepresentation of authority

    state or imply they have a legal right to conduct an immediate search.

    falsely state they have a warrant when they do not.

    request entry for a purpose other than to conduct a search.

    Illegal seizure illegally detain or arrest the subject.

    Verbal coercion verbally demand consent rather than request it.

    Intimidating demeanor appear in large numbers. use a demanding tone of voice. act in an overly authoritative manner, etc.

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    Peace officer conduct (continued)

    Action Consent may be considered involuntary if peace officers...

    Impairment or limitation of consenter

    fail to recognize or acknowledge the consenting person may be:

    - too young to understand the implications of

    the consent. - severely under the influence of alcohol or

    drugs. - mentally incapable of giving permission. - overly distraught or too emotional to

    understand.

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    LD 16: Chapter 3 – Warrantless Searches and Seizures 3-20

    Express vs. implied consent

    Consent must be given in the form of some affirmative act, either as express consent or implied consent. The following table illustrates the differences between these two types of consent.

    Express consent... Implied consent...

    occurs when the consenting person clearly authorizes the search either orally or in writing.

    occurs when the consenting person authorizes the search by actions or behavior indicating that consent was given.

    requires no inference to supply the full meaning.

    must be reasonably inferred.

    Examples: Verbal acknowledgment and

    approval (e.g., “Sure; go ahead”) Signing a consent form

    Examples: Nodding approval Stepping aside to allow entry

    NOTE: Consent may not be inferred simply from a failure to object or

    from mere silence. NOTE: Implied consent is usually more difficult to prove than express

    consent. Therefore, officers should make every effort to obtain express verbal or written consent before conducting a search.

    Right to refuse

    The courts have ruled that it is not legally necessary for officers to advise potential consenters that they have a constitutional right to refuse consent of a warrantless search. However, giving the consenting person such a warning is a strong positive factor indicating the voluntariness of the consent.

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    Authority to consent

    A consenter must have actual or apparent authority to consent to the search. Problems may occur when a person consents to the search of property owned or possessed by another. The following table illustrates how the validity of a consent can vary, depending on the consenter’s authority to waive the expectation of privacy.

    Relationship Consenter has

    authority if... Consenter has no authority if...

    husband/wife parent/child roommates/co-occupants

    there is joint access or control over an area or thing (e.g., kitchen, family room).

    the item is clearly a personal effect of, or the area is under the sole authority of, the nonconsenter (e.g., personal suitcase, tool box, locked closet). Co-occupant is present and objects to the search.

    landlord/tenant motel owner/boarder

    consenter is landlord or owner who has regained exclusive possession of a rental property.

    consenter is landlord or owner, but the premises are still occupied by the tenant (e.g., apartment, motel room).

    employer/employee there is common authority or control over the area or thing (e.g., unlocked file cabinets, open office spaces).

    the item is clearly a personal effect of, or the area is under the sole authority of, the nonconsenter (e.g., briefcase, purse, locked drawer).

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    Withdrawal of consent

    The person giving consent has the right to withdraw or limit that consent at any time during the search. Officers should not engage in activity that will limit the consenter’s ability to withdraw consent or limit scope of consent (i.e., person moves to another room). Consent can be withdrawn by: expressly doing so (e.g., “I don’t want you to search anything more”) making a statement (e.g., “I want you to leave now”) engaging in conduct that reasonably indicates that the consent is being

    withdrawn (e.g., blocking a doorway and saying “I don’t want you to go in there,” or not handing over the keys)

    Failure to comply with withdrawal

    If officers ignore the withdrawal or limitation of consent, any evidence that is